Pomponius, On Plautius, Book V. If, however, the heir should not make these repairs, and on this account the usufructuary should not be able to enjoy the property; the heir of the usufructuary will be entitled to an action on this ground for an amount of damages equal to the difference it would have made to the usufructuary if the heir had not failed to make said repairs; even though the usufruct has been terminated by the death of the usufructuary.

Ad Dig. 7,1,65Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 215, Note 11.Pomponius, On Plautius, Book V. But as the usufructuary is obliged to repair anything which has been injured by his own act, or by that of any of his family; he should not be released, even though he is ready to relinquish the usufruct; for he himself is obliged to do everything that the careful head of a household would do in his own house. 1An heir is no more compelled to repair property which a testator left ruined by age, than he would be if the testator had left anyone the ownership of the same.

Pomponius, On Plautius, Book V. Julianus says that where the same slave is granted a sum under the terms of a trust, and is also ordered to be free, the heir must grant him his freedom; for he says that he is not, by virtue of the trust, compelled to pay the value of the slave, as he gives him his freedom to which he is entitled. 1But where freedom is granted to a slave conditionally, under the terms of a trust, and the slave himself is given at the time, the heir will not be obliged to deliver him, unless security is furnished by the beneficiary of the trust that, if the condition is fulfilled, he will liberate the slave; for in almost all cases freedom granted by virtue of a trust is considered as having been directly granted. Ofilius, however, says that if a testator bestowed freedom by means of a trust, with the intention of depriving the slave of a legacy, this opinion is correct. But if the legatee can prove that the heir was charged by the testator, he will still be obliged to pay the value of the slave to the legatee.

Pomponius, On Plautius, Book V. Judgment cannot be rendered by a magistrate or an arbiter against a person who is insane.

Pomponius, On Plautius, Book V. Although anyone may have only asked for a female slave under a precarious tenure, it is held that it was intended that he should be entitled to any offspring of the said female slave.

Ad Dig. 45,2,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 295, Note 13.Pomponius, On Plautius, Book V. Where two joint-promisors are bound to deliver the same slave, the act of one prejudices the other.

The Same, On Plautius, Book V. A novation cannot arise from a stipulation which does not become operative. Nor can it be stated, in opposition to this, that if I stipulate with Titius, with the intention of renewing the debt which Sempronius owes me, under a condition, and while the condition is pending Titius should die, although the condition may have been fulfilled before the estate was entered upon, novation will take place; for, in this instance, the stipulation is not extinguished by the death of the promisor, but passes to the heir who, in the meantime, represents the estate.